Perry v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANTHONY R. PERRY,

Plaintiff,

v. Civil Action 1:22-cv-178

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

RONALD ERDOS, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, an Ohio inmate proceeding without the assistance of counsel, brings this action

against several employees of Southern Ohio Correctional Facility (“SOCF”) under 42 U.S.C.

§1983 alleging that prison officers used excessive force in violation of the Eighth Amendment

and that he was denied due process in the ensuing disciplinary proceedings in violation of the

Fourteenth Amendment. This matter is before the Court for the initial screen of Plaintiff’s

Amended Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims

and to recommend dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous,

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from

a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v.

Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the

reasons that follow, Plaintiff MAY PROCEED on his Eighth Amendment excessive force claim

against Defendants Dofflemyer, Pierce, Scott, and Fry, and the undersigned RECOMMENDS

that the Court DISMISS Plaintiff’s remaining claims pursuant to §§ 1915(e)(2) and 1915A(b)(1)

for failure to state a claim on which relief may be granted.

I. STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In

doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which

provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted. . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua

sponte dismissal of an action upon the Court’s determination that the action is frivolous or

malicious, or upon determination that the action fails to state a claim upon which relief may be

granted. See also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in

a civil action in which a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any

portion of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief

may be granted”).

Further, to properly state a claim upon which relief may be granted, a plaintiff must

satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil

Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under

Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “detailed factual allegations, a pleading

that offers labels and conclusions or a formulaic recitation of the elements of a cause of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

Facial plausibility is established “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The

plausibility of an inference depends on a host of considerations, including common sense and the

strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504

(citations omitted). Further, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

At all relevant times, Plaintiff was incarcerated at SOCF. Plaintiff’s Amended Complaint

alleges that Plaintiff was the victim of excessive force on June 25, 2020, when he was “beaten,

stomped, punched, kicked in the face with PR sticks and was called a nigger” by Defendants

Dofflemyer, Pierce, Scott, and Fry. (Am. Compl. 4, ECF No. 10.) Plaintiff also alleges that this

use of force caused him “suffering and severe pain in my left hand, arm, and wrist.” (Id.) He

further alleges that and that Defendants Erdos, Davis, and Mahlman “cover[ed] up the reports”

and “l[ied] under oath by charging [Plaintiff] for assaulting a staff officer” and increasing

Plaintiff’s security status. (Id.)

On June 8, 2022, Plaintiff filed a Motion to State Each Defendant Involved in Claim.

(ECF No. 27.)1 Therein, Plaintiff further alleges that Defendant Mahlman lied under oath by

stating that Defendant Fry was not present during Plaintiff’s beating by Dofflemyer, Pierce, Scott

on June 25, 2020. (Id. at 2.) Plaintiff also contends that Defendant Davis denied Plaintiff a

transfer to a different facility, which caused him to face retaliation during the assault on June 25,

2020. (Id. at 3.) Davis also allegedly lied when she stated that the officers came to Plaintiff’s cell

on June 25, 2020, for something Plaintiff had or had not done to Dofflemyer, Pierce, Scott, and

Fry the week prior to the assault. (Id. at 3–4.) Plaintiff also attaches a Serious Misconduct Panel

report reflecting a finding that Plaintiff assaulted a staff member on June 25, 2020 (the day he

was allegedly beaten), and that he threatened harm to staff members on June 25, 2020, and

January 25, 2020. As a result, he was placed in extended restrictive housing for a period of two

1 The Court construes this filing (ECF No. 27) as a motion to amend Plaintiff’s Amended

Complaint (ECF No. 10) with additional factual allegations and GRANTS the motion.

years (with a presumptive release date after one year). (ECF No. 27, PAGEID #269–73.)

Plaintiff also includes for the first time allegations relating to Corrections Officer Dustin

Deemer, who is not a named Defendant, alleging that Deemer said he will “give [Plaintiff] hell

from here on out” in retaliation for Plaintiff’s complaints about the June 25, 2020 beating and

assaulted Plaintiff on October 15, 2021. (ECF No. 27 at 1.) Finally, Plaintiff’s filings make

passing mention to Doe Defendants but do not contain allegations as to their conduct. Plaintiff

seeks compensatory damages and injunctive relief.

The undersigned construes Plaintiff’s allegations to advance an Eighth Amendment

excessive force claim arising out of the alleged June 25, 2020 beating and a Fourteenth

Amendment due process claim arising out of allegedly deficient disciplinary proceedings that

resulted in Plaintiff’s placement in extended restrictive housing. Plaintiff MAY PROCEED on

his Eighth Amendment excessive force claim against Defendants Dofflemyer, Pierce, Scott, and

Fry. It is RECOMMENDED that Plaintiff’s remaining claims, however, be dismissed pursuant

to § 1915A and § 1915(e) for failure to state a claim on which relief can be granted.

First, Plaintiff’s claims against the Doe Defendants must be dismissed for lack of

allegations specific to their conduct. The Sixth Circuit “has consistently held that damage claims

against government officials arising from alleged violations of constitutional rights must allege,

with particularity, facts that demonstrate what each defendant did to violate the asserted

constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v.

Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002)) (emphasis in original).

“[C]ategorical references to ‘Defendants’” do not meet this standard. Marcilis v. Twp. of

Redford, 693 F.3d 589, 596–97 (6th Cir. 2012). Neither do allegations that an individual

defendant “was present and perhaps involved in [the plaintiff’s] restraint,” without allegations as

to the unconstitutionality of the individual defendant’s actions. Lanman, 529 F.3d at 684. Thus,

without identifying what allegedly unconstitutional action was taken by the Doe Defendants,

Plaintiff cannot assert a viable claim against them. It is therefore RECOMMENDED that

Plaintiff’s claims against the Doe Defendants be DISMISSED pursuant to § 1915(e).

Plaintiff has further failed to plausibly allege a due process claim against Defendants

Erdos, Mahlman, or Davis arising from his assignment to extended restrictive housing as a result

of allegedly procedurally deficient disciplinary proceedings. Plaintiff’s due process claim fails

because he has not identified a constitutionally protected liberty interest implicated by the

disciplinary proceedings. “Failing to follow proper procedures is insufficient to establish an

infringement of a liberty interest.” Grinter v. Knight, 532 F.3d 567, 574, 576 (citing Olim v.

Wakinekona, 461 U.S. 238, 250 (1983)). Rather, “[a]n inmate establishes a liberty interest when

a change in conditions of confinement ‘imposes atypical and significant hardship on [him] in

relation to the ordinary incidents of prison life.’” Williams v. Lindamood, 526 F. App’x 559, 562

(6th Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). “To determine whether

changed conditions are ‘atypical and significant,’ a reviewing court considers both the duration

and the nature of the more restrictive confinement relative to ‘prison norms and to the terms of

the individual’s sentence.’” Id. (quoting Harden–Bey v. Rutter, 524 F.3d 789, 792–93 (6th Cir.

2008)).

“An increase in security classification does not constitute an atypical and significant

hardship in relation to the ordinary incidents of prison life because a prisoner has no

constitutional right to remain incarcerated in a particular prison or to be held in a specific

security classification.” Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005) (cleaned up);

see also Moody v. Daggett, 429 U.S. 79, 88 n.9 (1976) (change in “prisoner classification” does

not implicate a due process right); Harris v. Truesdell, 79 F. App’x 756, 759 (6th Cir. 2003)

(holding that neither “punishment of more than 60 days of punitive segregation” nor a change in

security classification “give rise to a protected Fourteenth Amendment Liberty interest”); Carter

v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (holding that inmate’s placement in disciplinary

confinement or a change in security classification or housing assignment did not implicate the

Due Process Clause). Courts in this District have expressly held that assignment to extended

restrictive housing, ODRC’s most restrictive security level, does not implicate a due process

liberty interest. See Cook v. Davis, No. 1:19-CV-624, 2019 WL 4564741, at *4 (S.D. Ohio Sept.

20, 2019); Wheeler v. Pickaway Corr. Inst., No. 2:19-CV-3512, 2019 WL 4744781, at *4 (S.D.

Ohio Sept. 30, 2019); Hairston v. Smith, No. 2:18-CV-826, 2018 WL 4599905, at *4 (S.D. Ohio

Sept. 25, 2018), report and recommendation adopted, 2018 WL 5268747 (S.D. Ohio Oct. 23,

2018).

Here, Plaintiff has not alleged that his placement in extended restrictive housing resulted

in any atypical and significant hardship in relation to the ordinary incidents of prison life. Nor

has he alleged that the disciplinary proceedings resulted in the lengthening of his prison

sentence, the withdrawal of good-time credits, or the deprivation of any necessities of life.

Because Plaintiff does not have a constitutional right to a particular security level or housing

assignment, it is RECOMMENDED that Plaintiff’s Fourteenth Amendment due process claim

be DISMISSED.

III. DISPOSITION

For the foregoing reasons, Plaintiff MAY PROCEED on his Eighth Amendment

excessive force claim against Defendants Dofflemyer, Pierce, Scott, and Fry, and it is

RECOMMENDED that the Court DISMISS Plaintiff’s remaining claims pursuant to

§§ 1915(e)(2) and 1915A(b)(1) for failure to state a claim on which relief may be granted.

Plaintiff has also filed a number of other motions which are resolved as follows:

 Plaintiff’s “Amended Complaint Motions” (ECF No. 14) and “Motions to State a Claim”

(ECF Nos. 19, 25) contain only citations to caselaw and no factual allegations specific to

Plaintiff’s case; as only factual allegations are at issue for the purposes of the initial

screen of Plaintiff’s claims under §§ 1915A and 1915(e), these motions (ECF Nos. 14,

19, 25) are DENIED.

 Plaintiff filed purported motions for summary judgment (ECF Nos. 16, 18), but later filed

a motion seeking to withdraw his summary judgment motions (ECF No. 20.) His motion

to withdraw (ECF No. 20) is GRANTED; accordingly, Plaintiff’s motions for summary

judgment (ECF No. 16, 18) are DENIED AS MOOT.

 Plaintiff’s motion for extension of time to file an affidavit of merit (ECF No. 23) is

DENIED AS MOOT as no affidavit of merit is currently due.

 Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No. 29) is DENIED

AS MOOT because the Court already granted Plaintiff’s previous motion for leave to

proceed in forma pauperis. (See ECF No. 5.)

 As noted above, the Court construes Plaintiff’s Motion to State Each Defendant Involved

in Claim (ECF No. 27) as a motion to amend Plaintiff’s Amended Complaint (ECF No.

10) with additional factual allegations and GRANTS the motion (ECF No. 27). Further,

for docket clarity, the Clerk is DIRECTED to combine the Amended Complaint (ECF

No. 10) and Plaintiff’s Motion to State Each Defendant Involved in Claim (ECF No. 27)

into a single document and file it on the docket as Plaintiff’s Second Amended

Complaint.

Finally, Plaintiff has not submitted the necessary summons or United States Marshals

Service forms to effect service on Defendants Dofflemyer, Pierce, Scott, and Fry. In light of

Plaintiff’s in forma pauperis status, if Plaintiff submits the necessary forms, the United States

Marshal is DIRECTED to serve by certified mail upon Defendants Dofflemyer, Pierce, Scott,

and Fry the summons, a copy of the Second Amended Complaint, and a copy of this Order and

Report and Recommendation.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE